Facts: This is the second interlocutory appeal in this case.

In this child custody dispute, the parties agreed to engage Dr. Clement as an evaluating psychologist for the purpose of making a parenting recommendation to the trial court. Dr. Clement was expressly authorized to speak with the parties’ respective counselors.

Later, upon Mother’s request, the trial court ordered Father to undergo a Rule 35 forensic examination, which examination was performed by Dr. Ciocca. Father authorized the release of certain medical and psychological records to Dr. Ciocca. When Mother sought to obtain copies of those records and the trial court ordered that they be produced to her, Father appealed.

In the first appeal, the summary of which can be found here, the Court ordered that Husband’s privileged psychological records be disclosed to the trial court for an in camera review for the purpose of conducting the comparative fitness analysis.

On remand, the trial court held Father waived the psychologist-client privilege by maintaining he was mentally and emotionally fit, and that Mother should have available to her Father’s mental health records for cross-examination and for review by Mother’s own expert witnesses.

Father again sought and received a second interlocutory appeal.

On Appeal: The Court of Appeals reversed the trial court.

The Court of Appeals’ opinion is a whopping 60 pages long. Because it covers so much ground, it would be impossible to summarize it in a concise blog post. Instead, I will post what I think are the most important excerpts and holdings that Tennessee divorce lawyers and litigants need to know.

1.  Seeking custody does not, by itself, amount to an automatic waiver of the psychologist-client privilege. Denying allegations of mental instability and abuse – or, in other words, asserting mental stability in response to the other party’s allegations of mental instability — without more, does not amount to automatic waiver. Otherwise, there would be no psychologist-client privilege in child custody cases; a party seeking privileged mental health records could obtain them simply by alleging the mental instability of his or her adversary.

2.  With either the attorney-client privilege or the psychologist-client privilege, when the holder of the privilege discloses privileged information in testimony, this can constitute a waiver of the privilege…. Likewise, if a party puts his mental health “at issue,” this too can constitute waiver of the psychologist-client privilege.

3.  Father’s reliance on the reports of the evaluating experts does not constitute a waiver of the privilege as to the records of Father’s treating psychologists.

4.  A party’s oral communications with a court-appointed evaluator are neither privileged nor confidential.

5.  Neither Father’s consent to giving Dr. Clement or Dr. Ciocca access to his treating psychologist nor his voluntary disclosure of some of his mental health records to Dr. Clement or Dr. Ciocca constitute a full and general waiver of the psychologist-client privilege as to all of Father’s mental health records.

6.  If an evaluating psychologist requests access to privileged information, in the absence of a court order compelling such disclosure, the party to be evaluated may decline the examiner’s request for the privileged information…. The party to be examined may be concerned that there will be a strategic cost to refusing the examiner’s request for access to privileged records. Absent a court order requiring disclosure, however, the decision on whether to proceed to the examiner’s request is a strategic one…. Absent compulsion by the court, the party holding the privilege remains free to decline the examiner’s request for access to privileged mental health records.

7.  If the disclosure (absent court order) of privileged information to an evaluating psychologist for a court-ordered evaluation is voluntary, it must necessarily constitute a waiver of the privilege with respect to the information actually disclosed.

8.  The psychologist-client privilege attaches to personal communications made by the patient to his treating psychologist, not to the treating psychologist’s opinion, observations, diagnosis, or treatment alternatives. If Father’s treating psychologists disclosed only non-privileged information, then there is no waiver arising from the evaluating psychologists’ contact with Father’s treating psychologists. If any of Father’s treating psychologists disclosed privileged information to either Dr. Clement or Dr. Ciocca, this would constitute a waiver after the particular privileged information disclosed only if the disclosure was pursuant to the express permission of Father, the privilege-holder, for such disclosure. Likewise, Father’s voluntary disclosure of mental health records to Drs. Clement or Ciocca would constitute a waiver of the privilege only as to the records actually disclosed to either of the evaluators with Father’s express permission.

9.  If Father voluntarily disclosed privileged information to either Dr. Clement or Dr. Ciocca, he waived the privilege as to the information that was actually disclosed by Father or with Father’s express permission…. In the record before us, we are unable to ascertain whether information subject to the psychologist-client privilege was voluntarily disclosed by Father to either Dr. Clement or Dr. Ciocca, and thus are unable to determine the extent to which Father waved the psychologist-client privilege. We are left with little choice but to remand the case to the trial court for factual findings….

The Court of Appeals then modified its ruling in the first interlocutory appeal. Considering that both Dr. Clement and Dr. Ciocca will be available to testify about Father’s mental health and, on remand, Mother will have access to any documents that father voluntarily disclosed to either Dr. Clement or Dr. Ciocca, the purpose for the in camera review ordered in the first appeal has been removed. On remand, the trial court may, in its discretion, perform an in camera review of the documents deemed to be within the limited waiver for the purpose of screening out any that are not relevant to the issues or unduly prejudicial. But the trial court is no longer either directed or authorized to conduct an in camera review of Father’s privileged mental health records for the general purpose of conducting its comparative fitness analysis.

Opining that the trial court’s actions after the first appeal show the trial court “demonstrates little inclination to follow the appellate court’s ruling,” the Court expressed “little hope that another remand to the trial judge below would yield compliance with this Court’s directive” in the first appeal. Because “it appears that the trial judge had difficulty putting his previous views aside and complying with the holding” in the first appeal, the Court found “that reassignment to a different trial judge is advisable to preserve the appearance of justice.”

Accordingly, the case was remanded and assigned to a different trial court.

K.O.’s Comment: This lengthy (!!!) opinion affirms that Tennessee follows the more protective view of the psychologist-client privilege. A parent’s mental health is not automatically at issue just because the parent is seeking custody of the children or because one parent alleges the other is mentally unstable. A party’s mental health records remain privileged unless they are voluntarily disclosed by the party.

The Court also declined to interpret the recent amendment to Tennessee Code Annotated § 36-6-106(a)(5), which authorizes a trial court to order the disclosure of a party’s confidential mental health information “if necessary for the conduct of the proceedings,” because the amendment was not in effect when the trial court entered its order and there is no reason to believe the legislature intended the amendment to be applied retroactively. The Court did provide some guidance, however, noting “[t]he phrase ‘necessary to the proceedings’ obviously means substantially more than simply ‘relevant to the proceedings.'”

Culbertson v. Culbertson (Tennessee Court of Appeals, Western Section, April 30, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.